INDEMNITY  SCHOOL  LOCATIONS. 


CONSTRUCTION 


HON.  SECRETARY  OF  THE  INTERIOR, 


ACT  OF  CONGRESS  APPROVED  MARCH  1,  1877, 


AN  ACT  RELATING  TO  INDEMNITY  SCHOOL  SELECTIONS  IN  THE  STATE 
OF  CALIFORNIA." 


SACRAMENTO: 

STATE  OFKICK  :::.!.    I).    YOUNG,  SIM'T.  STATK   PRINTING. 
1880. 


INDEMNITY  SCHOOL  LOCATIONS. 


CONSTRUCTION 


GIVEN    BY    THE 


HON.  SECRETARY  OF  THE  INTERIOR, 


'ACT  OF  CONGRESS  APPROVED  MARCH  1,  1877, 


AN  ACT  RELATING  TO  INDEMNITY  SCHOOL  SELECTIONS  IN  THE  STATE 
OF  CALIFORNIA." 


SACKAMENTO: 

STATIC  OFFICK  :  :  :  J.  D.  YOUNG,  SUPT.  STATE  PRINTING. 
1880. 


INDEMNITY  SCHOOL  LOCATIONS. 


To  his  Excellency  GEORGE  C.  PERKINS,  Governor  of  California  : 

SIR  :  I  have  the  honor  to  transmit  for  your  examination  a  letter 
received  from  the  Commissioner  of  the  General  Land  Office,  accom- 
panied with  a  communication  from  the  Hon.  Secretary  of  the  Inte- 
rior, giving  the  construction  that  said  officer,  as  the  head  of  the  Land 
Department  of  the  United  States,  puts  upon  the  Act  of  Congress 
approved  March  1,  1877,  entitled  "An  Act  relating  to  indemnity 
school  selections  in  the  State  of  California,"  and  by  which  said 
department  will  be  governed  in  making  the  adjustment  of  said 
indemnity  lands  between  the  State  and  United  States. 

This  decision  will  affect  the  title  of  the  State,  and  consequently  of 
purchasers  from  the  State,  of  all  lands  coming  within  the  purview 
of  the  Act  of  Congress  referred  to.  And,  notwithstanding  the  cura- 
tive effect  given  to  said  Act  by  the  construction  put  upon  it  by  the 
department,  I  think  it  is  safe  to  say  that  perhaps  from  one  hundred 
to  one  hundred  and  fifty  thousand  acres  of  the  land  now  listed  to 
the  State,  which  listing  apparently  gives  the  State  a  valid  title  as  the 
basis  for  sales,  but  it  is  now  evident  that  the  title  thus  acquired  was 
less  real  than  apparent,  and  must  be  remedied  in  some  way.  "While 
I  do  not  fully  agree  with  the  legal  conclusions  arrived  at  by  the 
Hon.  Secretary  of  the  Interior  as  to  the  extent  of  the  confirmation 
given  to  defective  locations  by  the  Act  of  March  1,  1877,  yet  it  is  a 
conclusion  equitable  as  between  the  State  and  United  States,  and  if 
liberally  carried  out  will  not  injuriously  affect  the  parties  who  have 
bought  lands  from  the  State  in  good  faith,  but  the  title  to  which  is 
defective.  But  in  order  to  execute  the  law  of  March  1,  1877,  as 
construed  by  the  Hon.  Secretary,  it  will  require  an  Act  of  the 
Legislature,  agreeing,  on  the  part  of  the  State,  to  the  conditions  of 
said  Act,  and  giving  to  the  Surveyor-General  or  to  some  Commis- 
sion, as  the  Governor  of  the  State,  the  Attorney-General,  and  Sur- 
veyor-General, authority  to  make  the  adjustment  between  the  State 
and  the  United  States,  on  the  basis  proposed  in  this  communication 
of  the  Hon.  Secretary  of  the  Interior,  in  order  that  the  rights  of  the 
purchasers  from  the  State  may  be  protected  to  the  full  extent  con- 
templated by  the  Act  of  Congress  referred  to. 

It  is  with  this  view  that  I  refer  the  matter  to  you  that  you  may 
have  time  to  consider  whether  or  not  it  should  be  placed  before  the 
Legislature  for  their  action. 

I  have  the  honor  to  be  your  obedient  servant, 

JAMES  W.  SHANKLIN, 

State  Surveyor-General. 
SACRAMENTO,  December  9,  1880. 


SNT   OF   THE   INTERIOR,  ^ 

GENERAL  LAND  OFFICE, 
[.  D.  C.,  November  30,  1880.  J 


DEPARTMENT  OF  THE  INTERIOR, 

WASHINGTON. 
J.  W.  SHANKLIN,  ESQ.,  State  Surveyor- General,  Sacramento,  California: 

SIR:    I  transmit  herewith,   for  your  consideration,   copy  of  the 
Secretary's  decision  of  the  22d  instant,  in  the  matter  of  the  adjust- 
ment of  the  school  grant  to  the  State  of  California,  under  the  pro- 
vision of  the  Act  of  Congress  approved  March  1, 1877. 
Very  respectfully, 

J.  A.  WILLIAMSON, 

Commissioner. 


[Copy.] 

DEPARTMENT  OF  THE  INTERIOR,         \ 
WASHINGTON,  D.  C.,  November  22, 1880.  f 

SIR:  I  have  had  under  careful  consideration  your  report  of  August 
fifth,  eighteen  hundred  and  eighty,  upon  the  condition  of  the  Cali- 
fornia school  land  grant,  and  your  request  for  the  establishment,  by 
this  department,  of  authoritative  rules  for  its  adjustment. 

The  many  accidental,  inadvertent,  or  erroneous  certifications  here- 
tofore from  time  to  time  made  to  the  State  of  California,  of  lands 
selected  as  indemnity  under  this  grant,  without  authority  of  law, 
and  the  sale  by  the  State  of  lands  thus  selected,  have  caused  great 
embarrassment  to  the  department  in  the  proper  adjustment  of  the 
grant,  and  much  uncertainty  and  confusion  of  titles  in  the  State, 
which  Congress  has  endeavored  to  relieve  by  the  passage  of  two  con- 
firmatory Acts.  Notwithstanding  what  has  been  done  by  Congress 
in  the  way  of  providing  rules  for  executive  guidance  in  this  matter, 
by  which  it  was  intended  to  so  adjust  the  grant  as  to  protect  as  far  as 
possible  bona  fide  purchasers  from  the  State,  and  at  the  same  time 
give  to  the  State  no  greater  quantity  of  land  than  it  would  be  entitled 
to  receive  under  the  original  grant,  and  to  fully  protect  the  interests 
of  the  United  States  and  claimants  under  the  general  laws  thereof,  it 
appears  from  your  report,  as  you  construe  the  laws  and  departmental 
rulings  relating  to  the  grant,  that  there  are  unconfirmed  invalid  cer- 
tifications, which,  if  allowed  to  remain  intact,  will  have  the  effect  to 
pass  to  the  State  lands  to  which  it  is  not  entitled,  and  in  excess  of  the 
quantity  allowed  by  law. 

You  express  the  opinion  that  the  lands  thus  illegally  selected  are 
not  of  the  character  contemplated,  and  were  not  intended  to  be 
granted  by  the  Acts  of  March  3,  1853  (10  Stats.  224),  February  26, 1859 
(11  Stats.  385,  Sections  2275  and  2276,  Revised  Statutes),  July  23,  1866) 
(14  Stats.  218),  and  March  1,  1877  (19  Stats.  267);  and  that,  conse- 
quently, under  the  Act  of  August  3, 1854  (10  Stats.  346,  Section  2449, 
Revised  Statutes),  the  certified  lists, so  far  as  these  lands  are  concerned, 
are  perfectly  null  and  void,  and  that  no  right,  title,  claim,  or  interest 
was  thereby  conveyed  to  the  State. 

You  therefore  suggest  that,  by  virtue  of  the  Act  last  above  men- 
tioned, the  Secretary  of  the  Interior  has  full  authority  to  treat  the 
lists,  so  far  as  they  embrace  such  lands,  as  mere  nullities,  and  the 
lands  as  still  forming  a  part  of  the  public  domain  and  subject  to  dis- 


posal  under  general  laws,  and  to  direct  the  disposal  of  the  same  as 
such;  and  you  recommend  the  establishment  of  rules  for  that  purpose. 

Undoubtedly  the  second  section  of  the  Act  of  1877  vests  the  depart- 
ment with  authority  and  jurisdiction  to  inquire  and  decide  whether, 
and  in  what  cases,  indemnity  school  selections,  certified  to  the  State 
before  March  1,  1877,  shall  fail  by  reason  of  the  land  in  lieu  of  which 
"  they  were  taken  not  being  included  within  such  final  survey  of  a 
Mexican  grant,"  as  the  first  section  contemplates,  or  by  reason  of  their 
being  "otherwise  defective  or  invalid,"  and  if  found  defective  or 
invalid,  and  not  confirmed  by  the  Act,  to  set  aside  the  certifications, 
or  to  treat  the  selected  lands  as  subject  to  disposal.  (Review  in 
Ketcham's  case,  November  6, 1880.)  For  determining  what  selections 
"are  otherwise  defective  or  invalid  "  within  the  meaning  of  the  Act, 
the  rule  must  be  deduced  from  the  seventh  section  of  the  Act  of  1853, 
the  Act  of  1859,  and  the  sixth  section  of  the  Act  of  1866;  and  in 
deciding  as  to  the  failure  of  title,  the  lands  having  been  certified,  it 
may  reasonably  be  held  that  Congress  intended  that  the  Act  of  eigh- 
teen hundred  and  fifty-four  should  be  recognized  as  furnishing  the 
rule. 

But  after  cases  have  been  measured  by  the  rules  above  mentioned, 
and  it  is  found  that  the  title  to  the  selected  lands  fails,  and  is  not 
conveyed  to  the  State  by  the  Act  of  eighteen  hundred  and  seventy- 
seven,  the  next  question  for  consideration  and  decision  is,  whether 
the  Act  makes  provision  for  a  disposition  of  such  lands.  If  it  shall 
be  found  that  the  Act  makes  such  provision,  then  it  will  not  be  neces- 
sary in  this  matter  to  discuss  the  question  of  the  authority  of  the  gov- 
ernment, by  virtue  of  the  Act  of  eighteen  hundred  and  fifty-four,  to 
dispose  of  these  lands  under  general  laws  without  first  procuring  a 
vacation  or  annul  Imerit  of  the  lists  by  judicial  decree.  It  is,  therefore, 
proper  to  consider  first  whether  authority  and  provision  for  their 
disposition  are  given  by  the  Act  of  March  1,  1877.  If  not,  then  the 
question  of  authority  under  the  Act  of  1854,  and  said  Section  2449, 
will  be  fully  considered  and  determined.  In  considering  whether  or 
not  the  Acts  of  1866  and  1877,  being  properly  construed,  afford  a  com- 
plete rule  for  executive  guidance  out  of  the  difficulties  occasioned  by 
the  irregularities  and  unauthorized  Acts  above  mentioned,  and  by 
which  the  grant,  so  far  as  selections  thereunder  were  certified  prior 
to  March  1,  1877  are  concerned,  may  be  properly,  and,  as  the  surveys 
in  California  become  complete,  finally  adjusted,  and  by  which  lands 
that  have  been  selected  and  certified  without  authority,  the  title  to 
which  is  not  confirmed,  may  be  disposed  of,  it  will  be  proper  to  ascer- 
tain. 

First — What  classes  of  selections  the  Act  of  1877  confirms  to  the 
State. 

Second — What  classes  of  invalid  selections  it  does  not  confirm,  and 
whether  or  not  all  of  the  lands  illegally  selected  and  certified,  as 
aforesaid,  the  title  to  which  is  not  confirmed  to  the  State,  may  be 
disposed  of  under  its  provisions. 

I  may  here  state,  for  the  sake  of  avoiding  repetitions,  that  in  deter- 
mining what  selections  are  confirmed  by  the  Act  of  1877,  the  conclu- 
sions reached  must  be  understood  as  subject  always  to  the  conditions, 
limitations,  and  exceptions  of  the  third  and  fourth  sections,  and  that 
the  Act  relates  exclusively  to  selections  that  were  certified  prior  to 
its  passage. 

The  first  section  confirms  selections  based  upon  the  sixteenth  and 


6 

thirty-sixth  sections  of  land,  or  what  would  be  so  designated  if  the 
public  surveys  were  extended  over  them,  which  have  been  or  shall 
be  found  to  lie  within  the  limits  of  Mexican  grants,  as  finally  sur- 
veyed, where  the  selections  were  made  prior  to  the  final  surveys  of 
such  grants,  provided  the  selected  lands  were  subject  to  disposal  by 
Congress,  March  1,  1877.  The  second  section  confirms  "  indemnity 
school  selections"  as  follows: 

First — Where  the  title  to  the  lands  selected  shall  fail  by  reason  of 
the  lands  in  lieu  of  which  the  selections  were  made  not  being  in- 
cluded within  the  final  survey  of  a  Mexican  grant,  except  as  herein- 
after specified. 

Second — Where  the  selections  "are  otherwise  defective  or  invalid," 
except  as  limited  by  the  first  proviso. 

In  arriving  at  what  is  considered  the  proper  construction  of  the 
words  "or  are  otherwise  defective  or  invalid,"  found  in  this  section, 
the  department  was  met  at  an  early  day  by  many  difficulties.  But 
the  matter  has  had  careful  and  patient  attention,  and  full  considera- 
tion, not  only  in  this  department,  but  by  the  Attorney-General  as 
well,  after  exhaustive  argument. 

It  will  not  be  necessary  to  point  out  the  many  difficulties  in  the 
way  of  construing  this  section,  nor  to  specify  the  objections  urged 
against  the  construction  finally  adopted.  It  is  sufficient  to  say  that 
the  main  objection  that  to  give  to  the  words  quoted  above  the  broad 
meaning  which  they  impart,  and  not  to  limit  their  meaning  by  the 
other  language  of  the  section,  would  render  other  portions  of  the  Act 
redundant,  or  perhaps  'unnecessary,  was  urged,  ably  argued,  fully 
considered,  and  held  to  yield  to  what  was  deemed  to  be  the  intention 
of  Congress.  What  that  construction  is  will  appear  upon  examina- 
tion of  the  opinion  of  the  Attorney-General  and  decisions  of  this 
department  hereinafter  referred  to.  The  first  construction  placed 
upon  the  second  section  of  the  Act  by  this  department  was  announced 
in  the  decision  of  the  case  of  Rosmus  Jackson  et  al.  vs.  The  State  of 
California,  rendered  August  10th,  1877  (Capp's  L.  0.  vol.  4,  p.  87). 

In  that  case,  after  stating  the  wide  difference  between  the  opinion 
of  counsel  for  the  State  and  that  of  counsel  for  the  settlers  "  as  to  the 
extent  of  the  confirmation  "  by  the  second  section,  it  was  held  as 
follows: 

I  am  of  the  opinion  that  the  second  section  of  this  Act  confirms  to  the  State  all  indemnity 
school  selections  which  had. been  certified  to  the  State  prior  to  its  passage,  except  those  lands 
occupied  by  bona  fide  settlers  prior  to  certification  ;  and,  excepting  also,  the  class  named  in  the 
first  proviso  thereof,  which  are  not  confirmed,  but  simply  subject  to  the  right  of  purchase  from 
the  government  by  the  innocent  purchaser  from  the  State.  The  words  "are  otherwise  defective 
or  invalid,"  in  my  opinion  refer  to  selections  that  Avere  defective  or  invalid  for  some  other  reason 
than  that  the  lands  in  lieu  of  which  they  were  made  shall  be  excluded  on  final  survey  from  a 
Mexican  grant,  as  in  the  case  where  the  sixteenth  and  thirty-sixth  sections  have  been  lost  to  the 
State,  and  the  irregularity  is  in  the  condition  of  the  land  selected.  With  this  class  there  was  no 
necessity  for  Congress  lo  provide  for  the  disposition  of  the  sixteenth  and  thirty-sixth  sections, 
for  they  had  been  disposed  of  by  the  government  and  lost  to  the  State,  and  a  simple  confirmation 
because  they  were  otherwise  defective  or  invalid,  on  account  of  the  condition  of  the  land  selected, 
was  all  that  was  required  to  quiet  the  title. 

It  may  be  stated  here  that  selections  made  for  losses  under  the 
seventh  section  of  the  Act  of  1853,  as  construed  by  the  sixth  section 
of  the  Act  of  1866,  and  for  deficiencies  under  the  Act  of  1859,  are 
alike  "  indemnity  school  selections." 

After  said  decision  was  rendered,  the  matter  of  the  construction  of 
the  Act  was,  upon  request  of  the  attorneys  for  the  settlers,  submitted 


to  the  Attorney-General  for  opinion,  before  whom  it  was  fully  argued 
both  by  the  attorneys  for  the  settlers  and  the  State,  and  the  Attorney- 
General  rendered  his  opinion  thereon  July  12th,  1878. 

It  will  be  observed  that  the  Attorney-General  holds,  what  was  not 
expressly  stated  in  my  decision,  but  might  be  fairly  inferred  there- 
from, that  the  Act  of  1877  was  not  intended  to  give  to  the  State  any 
more  land  than  it  would  be  entitled  to  receive  under  the  original 
grant,  and  that  in  all  respects  his  opinion  sustained  the  views  of 
this  department  upon  the  construction  of  the  Act. 

After  setting  out  briefly  the  argument  of  the  attorney  for  the  set- 
tlers upon  the  construction  of  the  words,  "or  are  otherwise  defective 
or  invalid,"  the  Attorney-General  says: 

But  in  the  view  of  the  case  which  presents  itself  to  me,  it  seems  that  these  words  are 
intended  to  confirm  to  the  State,  in  spite  of  any  defects  or  invalidities  which  have  existed  in  its 
selections,  the  lands  selected,  other  than  the  defect  arising  from  the  fact  that  there  was  no  origi- 
nal basis  for  the  selection,  and  that  a  confirmation  of  this  character  can  only  be  interpreted 
properly  as  in  the  nature  of  a  grant  de  novo  of  the  lands  thus  selected. 

And  again,  further  on : 

The  statute  is  in  its  nature  a  remedial  statute,  is  to  be  construed  generously  in  order  to  give 
to  the  State  the  benefit  which  it  was  entitled  to  receive  for  school  purposes,  and  to  relieve  the 
difficulties  which  had  arisen  in  the  State  by  reason  of  the  peculiar  complications  from  the  Mexi- 
can grants. 

Therefore,  in  addition  to  the  selections  clearly  confirmed  by  sec- 
tion one  and  the  first  part  of  section  two,  specifically  above  defined, 
it  follows  that  in  whatever  other  respect  indemnity  school  selections 
are  defective  or  invalid,  they  get  confirmation  by  the  Act  of  1877,  pro- 
vided it  has  been  or  shall  be  ascertained  that  the  State  has  actually 
sustained  a  loss  or  deficit  under  the  Act  of  1853  or  1859,  for  which 
the  selections  purport  to  have  been  made,  and  provided  further  that 
the  land  selected  was  free  from  reservation  and  subject  to  disposal  by 
Congress,  March  1,  1877. 

The  opinion  from  which  the  foregoing  quotations  were  made,  was 
adopted  by  my  modified  decision  in  said  case,  July  17,  1878,  wherein 
it  was  stated  that  the  same  sustained  the  views  of  this  department, 
upon  the  construction  to  be  given  to  said  Act  as  expressed  in  the 
decision  of  August  10,  1877.  The  opinion  therefore  has  become  the 
recognized  and  established  rule  of  this  department,  not  only  as  to 
the  construction  of  the  words,  "  or  are  otherwise  defective  or  inva- 
lid," but  to  the  full  extent  of  the  Attorn ey-General's  construction 
of  the  Act  in  all  other  respects.  Now  bearing  in  mind  that  it  was 
held  by  the  department,  August  10,  1877,  and  again  July  17,  1878, 
after  the  adoption  of  the  Attorney-General's  opinion,  that  the  Act 
of  1877  confirmed  a  large  number  of  selections  in  the  case  of  Jackson 
et  al.  vs.  The  State,  an  inquiry  into  the  character  of  the  selections 
thus  held  to  be  confirmed  will  show,  to  that  extent,  the  particular 
classes  of  cases  to  which  the  Act  as  construed  extends. 

In  the  first  place,  it  may  be  stated  that  all  of  the  selections  were 
defective  in  this:  that  the  lands  selected  were  in  a  state  of  reservation 
at  the  time  the  selections  were  made,  but  were  subject  to  disposal  by 
Congress,  March  1st,  1877,  by  reason  of  the  removal  of  the  reservation. 
Tracts  claimed  in  that  case  by  George  M.  Lincke,  John  W.  Williams, 
and  Joel  P.  Rushling,  had  been  selected  by  the  State  in  lieu  of 


school  sections  ascertained  by  final  surveys  to  be  included  in  Mexi- 
can grants. 

The  bases  of  the  selections,  therefore,  at  the  time  the  selections 
were  made,  were  absolutely  in  all  respects  legal.  The  selections 
were,  consequently,  in  no  way  irregular  or  invalid  by  reason  of  being 
prematurely  made.  The  invalidity  or  irregularity  was  otherwise 
than  in  the  bases  of  the  selections. 

Tracts  claimed  by  PJ  A.  Woolston,  W.  Birmingham,  and  Rasmus 
Jackson,  had  been  selected  in  lieu  of  a  deficiency  under  the  Act  of 
1859.  Tracts  claimed  by  Rasmus  Jackson,  James  M.  Prather,  and 
several  others,  parties  to  that  contest,  had  been  selected  in  lieu  of 
sixteenth  and  thirty-sixth  sections,  supposed  to  be  lost  to  the  State, 
prior  to  final  survey  of  the  grants  embracing  them,  but  which,  upon 
final  survey,  were  found  to  be  included  in  the  grants.  The  selec- 
tions of  these  tracts,  therefore,  were  defective  both  as  regarded  the 
sixteenth  and  thirty-sixth  sections  in  lieu  of  which  they  were  made 
and  the  land  selected. 

You  report  a  class  of  selections  not  involved  in  the  case  above 
mentioned,  viz. :  selections  of  land  in  one  land  district  in  lieu  of 
losses  or  deficiencies  in  another  district.  It  appears  to  me  that  such 
selections  are  as  clearly  confirmed  by  the  second  section  of  the  Act 
of  1877  as  any  others  that  are  defective  or  invalid. 

The  Act  of  1877  virtually  abrogates  the  legislative  rule  found  in 
the  seventh  section  of  the  Act  of  1853,  and  the  sixth  section  of  the 
Act  of  1866,  requiring  indemnity  selections  to  be  made  in  the  land 
district  in  which  the  loss  or  deficiency  occurs,  so  far  as  relates  to  the 
adjustment  of  selections  certified  prior  to  March  1,  1877.  At  all 
events,  this  Act  makes  no  distinction  as  regards  the  confirmation  or 
the  disposition  of  selected  lands,  between  selections,  defective  or 
invalid  by  reason  of  their  having  been  made  in  violation  of  that  rule, 
and  selections  defective  or  invalid  for  other  reasons.  It  would,  there- 
fore, appear  that  both  classes  of  indemnity  selections,  that  provided 
for  by  the  Act  of  1853,  as  construed  by  the  sixth  section  of  the  Act  of 
1866,  and  that  under  the  Act  of  1859,  are  contemplated  by  the  Act 
of  1877,  and  that  the  words,  "or  are  otherwise  defective  or  invalid," 
relates  to  defects  and  invalidities  other  than  those  particularly  stated 
in  section  one  and  the  first  part  of  section  two. 

In  the  matter  of  the  application  of  the  State  Surveyor-General  of 
California  to  have  an  indemnity  school  selection  canceled  for  inva- 
lidity, decided  by  this  department  September  6,  1880,  it  was  found 
that  the  selection  was  made  in  1869  and  certified  in  1870,  in  lieu  of  a 
part  of  a  thirty-sixth  section,  which  the  State  alleged  it  was  compelled 
to  relinquish  for  the  reason  that  the  section  was  in  a  grant;  that  the 
section  is  now  known  to  be  in  place,  and  that  it  is  unsurveyed  public 
land;  and  it  was  held  that  the  tract  in  lieu  of  which  the  selection 
was  made,  when  surveyed,  will  be  treated  as  excluded  from  a  final 
survey  within  the  meaning  of  the  Act  of  1877,  and  the  selection  as 
confirmed  by  that  Act. 

Hence,  without  recapitulating  or  further  particularizing  the  classes 
of  selections  confirmed  by  said  Act,  according  to  the  construction 
thereof  adopted  by  the  department,  as  shown  above,  it  may  be 
stated  as  a  rule  for  future  guidance  in  adjusting  the  grant  that,  in  all 
cases  of  defective  or  invalid  indemnity  school  selections  made  and 
certified  prior  to  the  passage  of  the  Act,  wherein  by  approved  public 
surveys,  or  by  the  final  surve}rs  of  Mexican  grants,  it  has  been,  or 


9 

may  hereafter  be  ascertained,  that  the  deficiencies  or  losses  in  lieu  of 
which  the  selections  were  made,  actually  exist;  and  in  all  cases 
wherein  it  shall  appear  that  the  selections  were  made  in  anticipation 
of  the  surveys  of  Mexican  grants  in  lieu  of  sixteenth  or  thirty-sixth 
sections,  supposed  or  alleged  by  the  State  to  be  lost  in  such  grants, 
but  where,  upon  final  survey  of  such  grants,  or  by  approved  public 
surveys,  made  or  approved  after  the  passage  of  said  Act,  such  school 
sections  shall  be  found  in  place,  and  not  included  in  any  grant,  the 
selections  will  be  treated  as  confirmed,  provided  the  selected  lands 
were  subject  to  Congressional  disposition  at  the  date  of  the  Act. 
Having  thus  ascertained  what  classes  of  selections  are  confirmed,  it 
remains  to  determine  what  classes  are  not  confirmed,  and  whether, 
or  in  what  cases  the  Act  makes  provisions  for  the  disposition  of  the 
selected  lands.  It  might  be  said  generally  that  no  invalid  selection  is 
confirmed  that  does  not  come  within  the  rule  above  stated.  But  in 
order  to  avoid  as  far  as  possible  any  misunderstanding  of  the  rule, 
it  may  be  well  to  state  it  negatively  as  to  some  classes  of  selections. 

In  the  first  place,  selections  made  in  anticipation  of  the  surveys  of 
Mexican  grants  in  lieu  of  school  sections  supposed  or  alleged  to  be 
lost  therein,  which  sections,  however,  were  subsequently  excluded 
from  the  final  surveys  of  such  grants  and  surveyed  as  public  land 
prior  to  the  passage  of  the  Act,  are  not  confirmed.  Upon  this  point 
the  Attorney-General,  in  his  opinion,  said:  "It  is  not  questioned 
that  the  effect  of  this  section  is  to  confirm  to  the  State  of  California 
the  selections  of  lands  made  by  it  as  indemnity  for  those  sections 
which  have  been  since  found  not  to  have  been  included  within  the 
final  survey  of  a  Mexican  grant,  and  to  reinvest  the  United  States 
with  the  title  thereto,  to  be  disposed  of  as  other  public  lands  of  the 
United  States." 

Undoubtedly  the  Attorney-General  used  the  adverb  since  as  relat- 
ing to  the  date  of  the  Act,  that  is,  in  the  sense,  that  since  the  passage 
of  the  Act  those  sections  have  been  found  not  to  have  been  included 
within  the  final  survey  of  a  Mexican  grant.  This  would  appear  to 
be  put  beyond  question  by  reading  the  second  section  of  the  Act, 
which  upon  this  subject  is  prospective. 

It  provides  "  that  where  indemnity  school  selections  have  been 
made  and  certified  to  the  State,  and  said  selections  shall  fail  * 
the  same  are  hereby  confirmed,  and  the  sixteenth  or  thirty-sixth 
sections  in  lieu  of  which  the  selection  wras  made  shall  upon  being 
excluded  from  such  final  survey,  be  disposed  of  as  other  public  lands 
of  the  United  States." 

The  language  of  the  Attorney-General,  as  well  as  that  of  the  Act 
itself,  excludes  from  confirmation  selections  of  the  class  now  under 
consideration.  In  such  cases,  therefore,  provision  is  made  in  the 
provisos  to  the  second  section  for  the  disposition  of  the  selected 
lands ;  for  there  was  no  such  sixteenth  or  thirty-sixth  sections  as  the 
Act  provides  shall  be  disposed  of  as  other  public  lands  (see  case  of 
Henry  Seaman,  decided  by  the  department,  November  5th,  1880); 
and  as  already  held,  the  State  can  take  no  greater  quantity  of  land 
by  virtue  of  this  Act,  than  it  was  entitled  to  by  the  original  grant 
in  other  words,  in  no  case  can  the  State  take  both  the  selected  lands 
and  the  school  sections  in  lieu  of  which  the  lands  were  selected. 

To  construe  the  Act  otherwise,  in  this  respect,  would  place  Con- 
gress in  the  position  of  having  attempted  to  reinvest  the  United 
2 


10 

States  with  a  title  already  absolutely  vested  in  fee-simple  in  the 
State  of  California,  without  the  consent  or  concurrent  action  of  the 
grantee,  or  of  intending  by  this  Act  to  enlarge  the  original  grant. 

Again,  the  Act  does  not  confirm  selections  made  in  lieu  of  six- 
teenth and  thirty-sixth  sections  that  were  surveyed,  and  thus  known 
to  be  in  place  at  the  time  the  selections  were  made.  In  such  cases 
the  title  to  the  school  section  had  already  vested  in  the  State,  and 
there  are  no  such  sixteenth  or  thirty-sixth  sections  as  the  Act  pro- 
vides shall  be  disposed  of  as  public  lands.  It  follows,  therefore,  that 
provision  is  made  for  the  disposal  of  the  selected  lands  under  the 
provisos  to  the  second  section. 

As  regards  this  class  of  selections,  it  was  held  by  the  department 
in  the  case  of  Watson  v.  The  State,  decided  January  28,  1880  (Copp's 
L.  0.  vol.  6,  p.  193),  as  follows: 

The  certification  had,  therefore,  independent  of  the  confirmation  of  the  Act  of  1866,  to  save 
bona  fide  purchasers,  no  basis  whatever;  and  even  if  confirmed  by  that  Act,  the  selection 
should  have  been  taken  for  a  specific  tract  actually  lost  to  the  State,  in  order  to  satisfy  the  con- 
dition that  no  greater  quantity  should  be  approved  to  the  State  for  school  purposes"  than  she 
was  already  entitled  to  by  law  *  *  *.  This  being  the  condition  of  the  selection,  which 
cannot  stand  under  the  Act  of -1866,  it  must  now  be  considered  with  respect  to  the  Act  of  March 
1,  1877. 

After  considering  the  selection  with  respect  to  that  Act,  the  Depart- 
ment held  as  follows: 

i 

I  am,  therefore,  of  the  opinion  that  the  selection  falls  within  the  intent  of  the  first  proviso  to 
the  Act  of  1877,  and  is  not  confirmed,  as  there  was  no  sixteenth  or  thirty-sixth  sections  desig- 
nated at  the  date  of  the  selection  for  which  indemnity  could  be  claimed;  the  particular  section 
indicated  not  being  within  the  unsurveyed  limits  of  a  private  grant,  but  surveyed  public  land, 
the  title  to  which  was  already  in  the  State. 

Thus,  it  appears  that  this  class  of  selections  gets  no  confirmation, 
either  by  the  Act  of  1866  or  1877.  I  am  aware  that  a  contrary  opin- 
ion as  to  confirmation  under  the  Act  of  1866  is  expressed  in  the 
decision  in  the  case  of  Dersch  vs.  The  California  and  Oregon  Rail- 
road Company,  rendered  February  24,  1880;  but  that  case  was  passed 
without  having  the  prior  one  of  Watson  vs.  State  in  mind.  The  Ittw 
of  the  matter  is  correctly  stated  in  the  last  named  decision. 

Again,  the  Act  confirms  but  one  selection  in  lieu  of  any  designated 
loss  or  deficiency,  and  that,  necessarily,  is  the  first  one;  and  in  case 
of  a  second,  third,  or  any  selection  after  the  first,  there  can  be  no 
difficulty  in  treating  the  selected  lands  as  subject  to  disposal  under 
the  provisos  aforesaid,  for  there  is  no  such  sixteenth  or  thirty-sixth 
sections  as  can  be  excluded  from  a  final  survey  and  revert  to  the 
United  States.  (Case  of  Henry  Seaman,  above  cited.)  In  discussing 
this  class  of  selections  the  Attorney-General,  in  his  opinion,  said : 

As  I  am  informed,  by  your  letter,  that  in  certain  cases  two  or  more  selections  have  been 
made  in  lieu  of  the  same  sixteenth  or  thirty-sixth  section  of  land,  I  ought  to  add  that  I  do  not, 
by  this  opinion,  intend  to  imply  that  the  State  is  entitled  to  more  than  one  selection  in  lieu  of 
any  one  section.  By  the  statute  of  July  23d,  1866,  in  regard  to  school  lands  in  California,  it 
was  provided  that  the  State  of  California  could  not  receive,  under  this  Act,  a  greater  quantity 
of  land  for  school  or  improvement  purposes  than  she  was  entitled  to  by  law.  And,  although 
this  proviso  is  not  repeated  in  the  Act  which  we  are  at  present  considering,  yet  there  is  nothing 
in  it  from  which  it  can  be  fairly  inferred  that  where  double  selections  are  made  they  were  to 
be  ratified,  or  that  the  State  was.  bv  reason  of  any  mistake  in  the  making  of  duplicate  selec- 
tions, to  obtain  a  greater  quantity  of  land  than  liad  originally  been  allowed  by  law  for  school 
purposes. 


11 

Should  cases  arise  in  which  it  is  found  that  more  land  was  certi- 
fied than  the  State  was  entitled  to  receive,  by  reason  of  the  bases 
designated,  which  will  include  cases  in  which  there  were  no  bases, 
present  or  prospective,  the  selection  as  to  the  excess  should  be  treated 
as  in  the  case  of  duplicate  selections,  except  that  in  case  of  any  given 
excessive  selection  the  State  should  be  notified  to  elect,  within  a  cer- 
tain period,  which  portion  of  the  selected  lands  it  will  retain. 

Thus,  it  would  appear  that  the  Act  of  1877  provides  a  complete 
rule  for  adjusting  said  grant,  as  regards  selections  made  and  certi- 
fied prior  to  its  passage,  and  makes  provision  for  the  disposition  of 
selected  lands,  the  title  to  which  is  not  thereb}r  confirmed  to  the 
State,  and  vests  the  department  with  jurisdiction  over  such  lands. 
It  is,  therefore,  unnecessary  to  look  to  other  Acts  for  authority  in 
the  premises. 

In  conclusion,  I  will  say  that  selections  are  confirmed  by  the  Act 
of  1877  only  to  the  extent  of  the  actual  losses  or  deficiencies  desig- 
nated as  bases  therefor,  except  where  the  tracts  named  as  bases  revert 
to  the  United  States,  under  the  provisions  thereof,  for  disposal,  as 
other  public  lands;  that  all  lands,  the  selections  whereof  are  not 
confirmed,  fall  within  the  provisos  aforesaid  for  disposition,  for  the 
reason  that  in  such  cases  there  are  no  sixteenth  or  thirty-sixth  sec- 
tions the  title  to  which  the  Government  can  resume;  and  that  the 
words,  "such  sixteenth  or  thirty-sixth  sections,"  found  in  the  first 
proviso  to  the  Act,  are  construed  to  embrace  and  mean  such  school 
sections,  designated  as  the  bases  of  selections,  as  might  be  excluded 
from  the  final  surveys  of  grants,  or  found  in  place  by  public  surveys 
after  the  passage  of  the  Act. 

Hence,  where  sections  certified  as  aforesaid  shall  be  found  defec- 
tive or  invalid,  and  adjudged  by  you  to  fail  for  any  of  the  reasons  con- 
templated by  the  Act  of  1877,  as  herein  construed,  and  not  confirmed 
thereby,  the  State  Surveyor-General  should  be  duly  notified  of  your 
decision  in  the  premises,  and  advised  that  a  certain  time,  say  ninety 
days  from  date  of  notice,  will  be  allowed  within  which  any  pur- 
chaser of  the  land  from  the  State  may  appear  to  perfect  his  claim 
under  the  second  section  of  the  Act,  and  that  if  no  one  claiming  as 
such  purchaser  shall  come  forward  and  establish  his  right  to  enter 
the  land  within  such  time,  the  land,  from  and  after  the  expiration  of 
such  period,  will  be  subject  to  disposal  under  the  general  land  laws 
of  the  United  States. 

Very  respectfully, 

C.  SCHURZ,  Secretary. 

The  Commissioner  of  the  General  Land  Office. 


[Public— No.  38.] 

AN  ACT 

RELATING   TO   INDEMNITY   SCHOOL    SELECTIONS   IN   CALIFORNIA. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America,  in  Congress  assembled,  That  the  title  to  the  lands 
certified  to  the  State  of  California,  known  as  indemnity  school  selec- 
tions, which  lands  were  selected  in  lieu  of  sixteenth  and  thirty  sixth 


12 

sections  lying  within  Mexican  grants,  of  which  -rants  the  final  sur- 
vey had  not  been  made  at  the  date  of  such  selection  by  sai^  State,  is 
hereby  confirmed  to  said  State  in  lieu  of  the  sixteenth  t.  J  thirty- 
sixth  sections  for  which  the  selections  were  made. 

SEC.  2.  That  where  indemnity  school  selections  have  been  made 
and  certified  to  said  State,  and  said  selections  shall  fail  by  reason  of 
the  land  in  lieu  of  which  they  were  taken  not  being  included  within 
such  final  survey  of  a  Mexican  grant,  or  are  otherwise  defective  or 
invalid,  the  same  are  hereby  confirmed,  and  the  sixteenth  or  thirty- 
sixth  section  in  lieu  of  which  the  selection  was  made  shall,  upon 
being  excluded  from  such  final  survey,  be  disposed  of  as  other  public 
lands  of  the  United  States ;  provided,  that  if  there  be  no  such  six- 
teenth or  thirty-sixth  sections,  and  the  land  certified  therefor  shall 
be  held  by  an  innocent  purchaser  for  a  valuable  consideration,  such 
purchaser  shall  be  allowed  to  prove  such  facts  before  the  proper  land 
office,  and  shall  be  allowed  to  purchase  the  same  at  or^e  dollar  and 
twenty-five  cents  per  acre,  not  to  exceed  three  hundred  and  twenty 
acres  for  any  one  person;  provided,  that  if  such  person  shall  neglect 
or  refuse,  after  knowledge  of  such  facts,  to  furnish  such  proof  and 
make  payment  for  such  land,  it  shall  be  subject  to  the  general  land 
laws  of  the  United  States. 

SEC.  3.  That  the  foregoing  confirmation  shall  not  extend  to  the 
lands  settled  upon  by  any  actual  settler,  claiming  the  right  to  enter 
not  exceeding  the  prescribed  legal  quantity  under  the  homestead  dr 

greemption  laws;  provided,  that  such  settlement  was  made  in  good 
lith,  upon  lands  not  occupied  by  the  settlement  or  improvement  of 
any  other  person,  and  prior  to  the  date  of  certification  of  such  lands 
to  the  State  of  California  by  the  Department  of  the  Interior ;  and 
provided^  further,  that  the  claim  of  such  settler  shall  be  presented  to 
the  Register  and  Receiver  of  the  District  Land  Office,  together  with 
the  proper  proof  of  his  settlement,  and  residence,  within  twelve 
months  after  the  passage  of  this  Act,  under  such  rules  and  regula- 
tions as  may  be  established  by  the  Commissioner  of  the  General 
Land  Office. 

SEC.  4.     That  this  Act  shall  not  apply  to  any  mineral  lands,  nor  to 
any  lands  in  the  City  and  County  of  San  Francisco,  nor  to  any  incor- 
porated city  or  town,  nor  to  any  tide,  swamp,  or  overflowed  lands. 
Approved  March  Istr1877. 


